MTR Part IV: Controversial proposed change to Stream Buffer Zone by OSM

The current administration recently proposed a controversial change in the SBZ rule. It sounds as though they plan to implement a new regulation to exempt certain coal mining activities from the Stream Buffer Zone Rule. As mentioned before, there is some confusing wording in the SBZ rule and as a consequence, it would be reworded to more accurately reflect the wording of SMCRA. I have examined the part of SMCRA that the SBZ rule is derived from and don’t find the change to be significant. As repugnant as I and others may find the practice of MTR, valley fills and the like, the change seems only to put into clearer terms what is already legal according to SMCRA.

Bush Administration’s Proposed New Rule (3/21/02 Draft)
§ 816.57 Hydrologic balance: Stream buffer zones.
(a) General. You must first obtain specific approval from the regulatory authority before conducting surface mining activities within 100 feet of a perennial or intermittent stream. Except as provided in paragraph (b), the regulatory authority may authorize such activities only after making a written finding that the activities will—
(1) Not cause or contribute to a violation of applicable State or Federal water quality standards.
(2) Be conducted to minimize disturbances to the quantity and quality of water in the stream. This finding need not be made with respect to any reach of the stream that is upstream of a sedimentation pond located within the stream channel; provided that the pond meets the location requirements of § 816.46(c)(1)(ii) of this part.
(3) Be conducted in a manner that minimizes disturbances and adverse impacts to fish, wildlife, and related environmental values of the stream.
(b) Placement of excess spoil in perennial or intermittent streams. The findings required in paragraphs (a)(1)-(3) do not apply to the construction of excess spoil fills in perennial or intermittent streams. To approve construction of fills in these streams, the regulatory authority must find that the applicant has—
(1) Minimized the creation of excess spoil to the maximum extent practicable as required under § 780.18(b)(3) of this chapter and § 816.102(b) of this part; and
(2) Designed the fill to avoid or minimize adverse impacts to perennial or intermittent streams to the extent required under §780.16(c) of this chapter and § 816.97(f) of this part.
(Mountains, 2007)

“The agency is proposing to fully implement the requirements established by Congress, and water from strip-mined areas still must meet state and federal water-quality standards," OSM contends. (Bruggers & Dunlop, 2007) The Office of Surface Mining points out that this proposal is a revision that will clarify existing requirements for mining in and around streams. They say that this is an effort aimed at achieving regulatory stability in Appalachia. (Owens, 2007)
OSM admits that valley fills disturb streams, but they must work within the bounds of SMCRA. It is their contention that this change will not have any noticeable impact on the way things are done in Appalachia.
Under the current stream buffer zone regulation, the length of streams permanently or temporarily directly impacted will be considerable. Approximately 535 miles of intermittent and perennial streams will be temporarily or permanently affected nationwide just from surface coal mining operations permitted from October 1, 2001 to June 30, 2005. We do not anticipate that revision of the stream buffer zone as described in the alternatives would cause additional stream disturbance as compared to the “No Action” alternative. (Enforcement, Environmental Impact Statement, 2007)


It is interesting to note that OSM did consider several alternatives, one of which would have amended the rule to prohibit any mining activity within the 100ft buffer zone. They discarded this alternative early on in the process, saying it would not be consistent with SMCRA regulations because it would significantly impact coal extraction activities, citing the following: “[OSM must]…assure that the coal supply essential to the Nation’s energy requirements, and to its economic and social well-being, is provided and strike a balance between protection of the environment and . . . the Nation’s need for coal as an essential source of energy.” (Enforcement, Environmental Impact Statement, 2007)

MTR Part III-Stream Buffer Zone Rule

Stream Buffer Zone Rule (SBZ)

Existing Buffer Zone Rule 30 CFR § 816.57

§ 816.57 Hydrologic balance: Stream buffer zones.

(a) No land within 100 feet of a perennial stream or an intermittent stream shall be disturbed by surface mining activities, unless the regulatory authority specifically authorizes surface mining activities closer to, or through, such a stream. The regulatory authority may authorize such activities only upon finding that—

(1) Surface mining activities will not cause or contribute to the violation of applicable State or Federal water quality standards, and will not adversely affect the water quantity and quality or other environmental resources of the stream; and

(2) If there will be a temporary or permanent stream-channel diversion, it will comply with Sec. 816.43.

(b) The area not to be disturbed shall be designated as a buffer zone, and the operator shall mark it as specified in Sec. 816.11.

[48 FR 30327, June 30, 1983] (Mountains, 2007)

OSM is not authorized to prohibit Mountaintop Removal Activities under SMCRA. All rules are extracted from SMCRA guidelines during rulemaking.[1] The Stream Buffer Zone Rule applies to mining activities in or around intermittent[2] and perennial streams.[3] There is much controversy regarding this rule and what proposed changes will mean.

The following is representative of environmental group’s interpretation of the SBZ rule: “The Stream Buffer Zone Rule prohibits coal-mining activities from disrupting areas within 100 feet of streams unless those activities in no way impact water quality or quantity.” (Lyric, 2007) But upon closer study, I find that OSM interprets the law as prohibiting activities that adversely impact water quantity or quality. In their reasoning, the law provides for a variance when in their estimation, the proposed activity will not cause significant damage. I think the misunderstanding stems from the use of the phrase, “will not adversely affect the water quantity and quality…..” (Mountains, 2007) A literal interpretation of this statement would lead one to believe that the activities in question are completely prohibited when in fact the actual wording in SMCRA uses the phrase, “minimize adverse impacts….” (Enforcement, Environmental Impact Statement, 2007) OSM is charged with balancing the nation’s need for energy with environmental concerns. Therefore, they will not and cannot, completely prohibit any mining activities allowed by SMCRA, but rather they can only regulate them to the extent allowed by law. “A Stream Buffer Zone is not required by the Surface Mining Control and Reclamation Act of 1977 (SMCRA). OSM created the existing Stream Buffer Zone rule as a framework for making sure this standard is met. While the law (SMCRA) does not prohibit most mining activities within and around streams, OSM and States have used the Stream Buffer Zone rule to require mine operators to take additional precautions within that zone.” (Owens, 2007)

---

[1] Rulemaking is the process by which OSM interprets the law into practicable actions.

[2] Refers to a stream that only flows for part of the year

[3]Refers to a stream that flows year round